Delhi District Court
State vs . Rashid on 22 April, 2014
IN THE COURT OF SH RAJENDER KUMAR SHASTRI
ADDL. SESSIONS JUDGE02:SOUTH EAST
SAKET COURT: NEW DELHI
IN RE: ID No. 02406R0157322012
SC No. 39/12
FIR No. 134/12
PS Amar Colony
State Vs. Rashid
S/o Sh. Samsuddin
R/o Vill. Ashabad, Near Kalawati
School, P. S. Rasool Pur,
Distt. Firozabad, U.P.
__________________________________________________________
Date of Institution : 20.07.2012
Date of arguments : 16.04.2014
Date of judgment : 22.04.2014
JUDGMENT
On 26.04.2012 at 7.37 am, an information was received in police station Lajpat Nagar about a lady, who was brought by some person at the entry gate of MCD hospital, Lajpat Nagar. Information was recorded as DD no. 12A. It was marked to ASI Satbir Singh for investigation. The latter reached said hospital along with Ct. Praveen. One Satish Kumar, a ward boy of that hospital met IO and disclosed that SC No. 39/12 1 of 15 when he was mooning around roof of his house in the morning on that day he saw one rickshaw puller having dropped said lady at the gate of their hospital. She started crying, when he i.e. Satish Kumar went there. Several public persons had already gathered. The lady disclosed her name as Momin Tara and told that she was beaten by her husband inside a park at Okhla Mandi. She also told about her husband having thrown some inflammable material upon her and that she was feeling irritation. She requested for medical aid. ASI Satbir Singh contacted police control room at no. 100. A PCR van reached there and they took injured to Safdarjung hospital and got her admitted there. ASI Satbir Singh gave information to PS Lajpat Nagar which was recorded as DD no. 23A. He i.e. ASI Satbir Singh requested area SDM for recording statement of injured. SDM asked the IO to call Tehsildar (Executive Magistrate) Sh. R. K. Aggarwal. The latter told that he was busy in some meeting. In such a circumstance, ASI Satbir Singh opted to record statement of injured himself. The latter disclosed the incident as under : "I am residing at address mentioned above i.e. Dharam Kanta (weighing machine), near Kalawati School, Police Post Rasool Pur, Firozabad, U.P. I was married with Rashid s/o Sh. Samsuddin 45 years back i.e. on 10.02.2008. I have one son namely Shahbuddin aged about two years from Rashid. My another son has died, who was elder to Shahbuddin. Since the time of my marriage, my husband used to quarrel and beat me. My brotherinlaw Raja used to save me from my husband and hence my husband started SC No. 39/12 2 of 15 levelling allegation against him about our illicit relationship. My father and two brothers are residing at Vill. Poch, Dist. Jalon, U.P. 56 months back, my husband brought me to Mathura. My motherinlaw, who resides at native village used to beat me. After coming Mathura, we started residing in the house of one Babloo r/o Bhesbhagoda PS Govind Nagar, Mathura. My husband used to beat me here also. He started selling vegetables on a handcart. Day before yesterday i.e. 24.04.2012, my husband gave me severe beatings. I reported matter to the police. Police facilitated a compromise between us. Yesterday i.e. 25.04.2012, my husband asked me to go to Gurgaon stating that he will earn more there. Between 1011 pm, we got off train and went inside public park situated in Okhla Sabzi Mandi. He asked me to sleep there overnight. He started pressing my neck at about 34 am. He threw some (unknown) material upon me and fled away after taking our son with him. To save my life, I went to road from that park. People took me for a lunatic and none became ready to help me. Clothes on my body remained in the name sake (almost burnt). I begged for some help. Someone gave me Rs.10/, some other Rs.5/. I hired a rickshaw for Rs.30/. Rickshaw puller took me to police post but there was no police present. He i.e. rickshaw puller brought me to hospital and dropped there".
On said statement of injured, FIR in this case was registered for offence punishable under Section 326 IPC.
In between, Executive Magistrate Sh. Ram Kumar Aggarwal also reached hospital and recorded statement of injured. IO collected MLC of said Smt. Momin Tara. Doctor opined the injuries as grievous.
On 01.05.2012, on a secret information, accused Rashid was arrested from near Canara Bank, Sriniwaspuri, who gave disclosure SC No. 39/12 3 of 15 statement. After completion of investigation, police indicted accused for offence punishable under Section 307 IPC.
Accused Rashid was charged for the same offence i.e. punishable under Section 307 IPC on 01.09.2012. He pleaded not guilty and claimed trial, when charge was read over and explained to him.
In order to substantiate its case, prosecution examined Momin Tara as PW1, Satish Kumar as PW2, HC Manbir Singh as PW3, ASI Satyavir Singh as PW4, Ct. Dharamvir Singh as PW5, Ct. Jugesh Rai as PW6, Sh. Ram Kumar Aggarwal as PW7, Raja as PW8, SI Virender Singh as PW9, ASI Sushil Kumar as PW10, Raja as PW11, Dr. Sanjay Mishra as PW12, Rajkumar as PW13 and ASI Subhash Chander as PW14.
The accused in his statement recorded under Section 313 Cr.P.C. admitted the fact that victim Momin Tara was married to him but alleged that there was no quarrel between him and the injured. Other incriminating evidence was denied by the accused saying the same as incorrect. As per accused, it was a false case, lodged at the instance of his younger brother, who had illicit relationship with his wife i.e. injured Momin Tara and it was the reason that her parents also did not support his wife. In the night of incident he was present in Okhla Mandi and did not know where his wife i.e. injured had gone. The accused opted not to lead any evidence in his defence.
SC No. 39/12 4 of 15 I have heard Ld. Addl. PP for the State and Ld. Counsel representing the accused.
Iinjured Momin Tara, when examined in court as PW1 reiterated the incident as that she was married with accused Rashid on 10th February, about five years back (PW1 was examined in court on 30.10.2012). She gave birth to two children from accused, one of whom expired. There remained some quarrel between them. Accused was not earning anything. All expenses of delivery of said two children were borne by her parents. He (accused) was not providing any help to her. He took her to Mathura and started living there. After sometime, he asked her that he will shift to Gurgaon. Accused used to beat her, while at Mathura as well as at Gurgaon. On 25.04.2012, accused took her to a park at Okhla Mandi. He asked her to stay there overnight stating that there was no bus available for Gurgaon at that time. She slept in the park. Accused started pressing her neck. When she enquired from him as why he was doing so, he told that he was simply joking. He again pressed her neck twice but she woke up and restrained him. Accused pressed her neck third time. She started writhing in pain. She gave tooth bite on his finger in order to save herself. Accused bashed her and pushed her aside by nudge. He also gave her tooth bite on her lips. He poured tezab (acid) on her body. She suffered burn injuries on her several parts. Taking her as dead, he (accused) fled away from that park SC No. 39/12 5 of 15 along with their child.
Satish Kumar (PW2), a ward boy in MCD hospital told that about 34 months back, date and month he did not remember (PW2 examined in court on 30.10.2012) at about 7.00 am, he was present at his house and was waiting for maidservant to come, he saw some lady having brought there in a rickshaw in injured condition. Rickshaw puller left her on a bench. He heard shriek of that injured lady. Public persons gathered there. He went to that bench. Face of injured was swollen to great extent. She disclosed that she was burnt by her husband. He (PW2) called police control room at no. 100. Police came there and injured was taken to hospital.
ASI Satyavir Singh (PW4) stated on oath that in the intervening night of 25th 26th April 2012, he was on emergency duty in PS Lajpat Nagar. At 7.37 am, on receipt of DD no. 12A, he along with Ct. Parveen went to said hospital. Injured was known to have been shifted to Safdarjung hospital by a PCR van. He went there and interrogated said injured lady. She disclosed her name as Momin Tara. He informed SDM. SDM asked him to contact Tehsildar. He talked to the latter. At the same time, he intimated senior officers of the police. In between, copy of DD no. 23A was handed over to him. He went to Safdarjung hospital again and recorded statement of injured (Ex.PW1/A). Tehsildar also reached there. He also recorded statement SC No. 39/12 6 of 15 of injured in questionanswer form. Sh. Ram Kumar Aggarwal (PW7) was Tehsildar of Defence Colony. This witness also verified to have recorded statement of injured i.e. Ex.PW7/A. ASI Sushil Kumar (PW10) told to have recorded DD no. 12A on 26.04.2012 at 7.37 am, after receipt of a call from police control room. Order of said DD is Ex.PW10/A. HC Manbir Singh (PW3) was Duty Officer in PS Amar Colony on 26.04.2012 and verified having recorded FIR no. 134/12 in this case on the basis of rukka sent by ASI Subhash Chander. Copy of FIR is Ex.PW3/A and his endorsement on rukka is Ex.PW3/B. Ct. Jugesh Rai (PW6) stated about handing over copy of FIR to SI Subhash Chand in Safdarjung hospital having been handed over to him by the Duty Officer. SI Virender Singh (PW9) was Incharge of a PCR Van. It is corroborated by this witness that in the intervening night of 25th 26th April 2012, on receipt of a call from police control room, he i.e. PW9 reached MCD hospital. A lady had been dropped there in injured condition, who was known as Momin Tara w/o Rashid (accused). He got her admitted in Burn Ward of Safdarjung hospital.
Dr. Sanjay Mishra (PW12) stated to have examined Momin Tara a female aged about 26 years brought by SI Virender Singh. On 26.04.2012 after examination, he prepared MLC (Ex.PW12/A). Rajkumar (PW13) was Record Clerk in AIIMS hospital SC No. 39/12 7 of 15 and identified signatures of Dr. Sudipta Ranjan Singh on the MLC of Rashid Ex.PW13/A. As per this witness, Dr. Sudipta Ranjan Singh left their hospital and he identified signatures of Dr. Sudipta Ranjan having seen him writing and signing before him.
Raja is brother of accused Rashid and was examined as PW8 on 19.01.2013. His further examination was deferred. This witness was again examined in court on 15.03.2013. Perhaps mistakenly, he was given different number as PW11. As per this witness, Rashid and Momin Tara were married about 67 years back. Earlier they were residing at Vill. Fafoon, Distt. Oraiya, U.P. There was no problem with them. They shifted to Gurgaon (Haryana). He came to know that his sisterinlaw i.e. Momin Tara had suffered burn injuries. Police took his signatures on some documents.
ASI Subhash Chander (PW14) was IO of the case and told about statement of injured Momin Tara having been recorded by Executive Magistrate, on the basis of which FIR in this case was registered. Statement of injured was also recorded by ASI Satbir Singh. PW14 also told about arrest of accused on 01.05.2012 on receipt of a secret information. Accused was got medically examined from Trauma Center, AIIMS. He collected MLC of accused which is Ex.PW13/A. It is contended by Ld. Defence counsel that accused has been falsely implicated in this case. Prosecution failed to prove its case SC No. 39/12 8 of 15 against the accused. As per complainant / injured Momin Tara, accused threw acid on her body, due to which she suffered injuries but as per Dr. Sanjay Mishra (PW12) the injuries found on the body of said Momin Tara were not possible by throwing acid. It is also deposed by said Dr. Sanjay Mishra (PW12) that he found thermal burn injuries on the abdomen and thigh of the victim but there is no such averment made by injured or any other witness that she suffered injuries on her abdomen or thigh. IO ASI Subhash Chander (PW14) admitted in his cross examination that it was disclosed to him by the injured that she was set on fire by accused by lighting a match stick. Neither any match box, partly burnt match sticks nor any other such thing was seized by the police in this case. Moreover, the injured did not tell to the court that she was set on fire by the accused. Ld. Counsel referred brother of accused, who stated in the court that there was no quarrel with the couple. They were living peacefully and that accused had no extramarital affairs. Referring these circumstances, Ld. Defence Counsel was surprised as how the accused could have tried to kill his own wife. As per her, injured had illicit relationship with brother of accused i.e. Raja and this fact was known to her parents. Therefore, parents of injured did not come for her help. Citing all this, Ld. Counsel requests for acquittal of accused.
It is well settled that medical evidence is not conclusive SC No. 39/12 9 of 15 and decisive because it is primarily an evidence of opinion and not of fact. It was held by the Apex court in case Mayur Pana Bhai Shah Vs. State of Gujarat AIR 1983 SC 66 that when a doctor was examined as witness, his evidence is to be appreciated like that of any other witness. There is no presumption that a doctor is always a witness of truth. The medical expert is not a witness of fact. His evidence is really of an advisory character, given in the form of an opinion, on the facts submitted to him.
As per MLC Ex.PW12/A, treating doctor found following injuries on the victim :
1). about 10% deep thermal burn (as per chart).
2). swelling over right side of face, bony continuity cannot be evaluated
3). blackening around both eyes
4). laceration around right angle of mouth Injuries are opined as grievous.
Burn injuries are generally classified as : i. reddening and blistering of skin only ii. charring and destruction of full thickness of skin iii. charring of tissues beneath skin i.e. fat, muscles and bone.
As per Modi's Medical Jurisprudence and Toxicology (Twenty third Edition), if burn is of a distinctive shape, a SC No. 39/12 10 of 15 corresponding hot object may be identified being applied to the skin and thus abrasions will have distinctive patterns.
Burns produced by flame may or may not produce blisters, but singeing of the hair, eye brows and blackening of the skin is always present. Burns caused by kerosene oil are usually very severe, and are known from its characteristic odour and the scooty blackening of the parts.
According to PC Dikshit writer of HWV COX Medical Jurisprudence and Toxicology (Seventh Edition), strong acids such as sulphuric, hydrochloric and nitric acid tends to produce darkleathery burns upon the skin. Strong alkalies such as caustic soda or caustic potash are more likely to cause the skin to slough and leave moist, slimy greyish areas. Strong organic chemicals such as phenol, lysol, carbolic acid etc., tend to discolour the skin sometimes in a purplish or reddish fashion.
Neither in the MLC (Ex.PW12/A) nor in his statement, Dr. Sanjay Mishra explained as to whether he found any blister, singeing of hair or eye brows of the victim or blackening of her skin (except blackening around both eyes) if the burns were caused by flame as is stated by him during his crossexamination by Ld. Defence counsel, it is also not explained as to whether he observed any odour or sooty blackening of burnt parts of the victim to rule out if same were caused SC No. 39/12 11 of 15 by kerosene etc. It is not clear if there were any darkleathery burns upon the victim at / near places of burn, if it was a green wound or slough or any moist, slimy greyish area near the wound of the victim, to ascertain if the same were caused by any strong acid.
As mentioned above, doctor concerned opined the injury found on the person of victim as grievous but it is not explained as how same were grievous. According to Modi's Medical Jurisprudence and Toxicology (Twenty third Edition), burns of first and second degree, if not extensive, are mostly simple. If burns cause scars causing permanent disfiguration of head or face, permanent loss of sight of either eye, or permanent impairment of a member or a joint owing to the formation of a cicatrix and contraction, if a joint and its neighbouring parts have been severely burnt, they are grievous injuries. It is not case of anyone that the head , face, eye or any other part of victim was permanently disfigured or there was any permanent impairment of any member of joint of victim or that the pain suffered by her was so severe that she remained bedridden or unable to follow her ordinary pursuits for 20 days. In such a circumstance, it is doubtful that injuries suffered by said victim were grievous. Keeping in view all these facts, I find opinion of Dr. Sanjay Mishra (PW12) not much reliable.
The fact that such a lady i.e. Momin Tara was dropped by a rickshaw puller in injured condition before MCD hospital on a day SC No. 39/12 12 of 15 at 7.00 am is proved from the statement of Satish Kumar (PW2), who was a ward boy in said hospital. Her face was swollen to great extent and that she told that she was burnt by her husband. SI Virender Singh (PW9) was Incharge of a PCR van. Said witness also verified to have reached said MCD Hospital. A lady i.e. Momin Tara was found there in injured condition. He i.e. PW9 got her admitted in Burn Ward of Safdarjung Hospital. ASI Sushil Kumar told about DD 12A recorded by him on that day i.e. 26.042012. Similarly, IO of the case ASI Satyavir Singh (PW4) corroborated the fact that injured i.e. Momin Tara was referred to Safdarjung hospital by a PCR van.
Dr. Sanjay Mishra (PW12) told about injuries suffered by victim Momin Tara. The fact that face of victim was swollen to great extent and she had suffered burn injuries is also disclosed by Satish Kumar (PW2), who happened to see her, lying on a bench.
As per injured Momin Tara (PW1), her husband was taking her to Gurgaon. They got down at Okhla Industrial Area where they slept inside a public park. Accused started pressing her neck. On being enquired by her, he laughed down the incident stating that he was simply joking. Accused pressed her neck twice but she woke up and restrained him. Accused bashed her, pushed her aside and gave her tooth bite. He poured tejab (acid) on her body. Thinking her dead, accused fled away from that park.
SC No. 39/12 13 of 15 It was not disputed that accused was also medically examined after being arrested by police. As per his MLC i.e. Ex.PW13/A, there was one lacerated wound of size 1x0.5 cm, muscle deep on proximal half of left ring finger at its medial aspect. The ring finger and whole left palm were swollen. Doctor, who medically examined the accused opined that said injury was possible by human bite. The accused did not give any explanation as how he suffered that injury. All this is a incriminating fact against accused and at the same time, it corroborates the testimony of victim Momin Tara alleging that she gave tooth bite on the finger of accused, in order to save herself. As mentioned above, Satish Kumar, a ward boy in MCD hospital, who saw the victim having been dropped there by a rickshaw puller also observed that she i.e. victim Momin Tara was injured. Her face was swollen to great extent and she disclosed that she was burnt by her husband. PW Raja, who is brother of accused also told that accused along with victim Momin Tara shifted to Gurgaon from Oraiya, U.P. All this corroborates testimony of Momin Tara, as described above.
There is no evidence to establish that the victim had any illicit relationship with Raja (brother of accused) or he has been falsely implicated in this case. Even said Raja turning hostile to the case of prosecution stated before the court that there was no problem with the couple. Simply to say that parents of victim did not come forward to SC No. 39/12 14 of 15 support their daughter, is no evident that she was lady of bad character. Only parents of victim knew as why they did not support their own child, in her peril.
The fact that accused tried at least three times to strangulate the victim, who was his own wife and also fled away after pouring some inflammable substance upon her, leaving her at the mercy of god are enough to presume that accused intended to kill her. The accused is thus convicted for offence punishable under Section 307 IPC.
During deliberations, it is pointed out that the accused has already divorced victim Momin Tara and she is not supported by her parents also. I think it proper to refer the matter to Delhi Legal Services Authority with request to provide compensation to her (the victim).
An application along with copy of this judgment is being sent to Secretary, DLSA (SouthEast), New Delhi.
Announced in open court (RAJENDER KUMAR SHASTRI)
today i.e. 22nd April 2014 Addl. Sessions Judge02:South East
Saket Court: New Delhi
SC No. 39/12 15 of 15